In Re Complaint of Judicial Misconduct ( 2016 )

FOR PUBLICATION
JUDICIAL COUNCIL
OF THE NINTH CIRCUIT
No. 15-90072
IN RE COMPLAINT OF JUDICIAL
MISCONDUCT ORDER
Filed March 14, 2016
ORDER
THOMAS, Chief Judge:
Complainant is a litigant who filed a civil rights action
against a university. He alleges that a district judge created
an “appearance of impropriety” by presiding over his case
because the judge graduated from the university, gave
lectures there, served on the university alumni association’s
board of directors, and lives near the attorney for the
university.
Complainant does not allege actual impropriety. In fact,
the complaint affirmatively states that “[t]his Complaint does
NOT conclude that [the judge], whose record from the bench
is respected throughout the nation, actually engaged in
judicial misconduct.” Nor does the complaint allege the
judge should have recused himself. None of the present
allegations were made during the course of the action, nor did
complainant at any time ask the judge to recuse. The
complaint must be dismissed because none of the
2 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
associations—either on their own or taken collectively—
create the appearance of impropriety.
The Code of Conduct for United States Judges directs
federal judges to avoid both actual impropriety and its
appearance. Code of Conduct for United States Judges,
Canon 2. As Justice Frankfurter put it, “justice must satisfy
the appearance of justice.” Offutt v. United States, 348 U.S.
11, 14 (1954). All the same, misconduct complaints that do
“not allege[] behavior that is ‘prejudicial to the effective and
expeditious administration of the business of the courts,’ . . .
must be dismissed.” In re Complaint of Judicial Misconduct,
632 F.3d 1289 (9th Cir. 2011). An objective standard
governs whether a judge’s associations create the appearance
of impropriety. Caperton v. A.T. Massey Coal Co., 556 U.S.
868, 886 (2009).
“The Supreme Court has recognized only a few
circumstances in which an appearance of bias necessitates
recusal to ensure due process of law.” Greenway v. Schriro,
653 F.3d 790, 806 (9th Cir. 2011). Typically, the Supreme
Court has only mandated recusal where a judge has a direct,
personal, or substantial connection to the outcome of a case
or to its parties. See, e.g., In re Murchison, 349 U.S. 133, 136
(1955) (concluding that “no man is permitted to try cases
where he has an interest in the outcome”); Tumey v. Ohio,
273 U.S. 510, 523 (1927) (concluding that judges should not
preside over cases involving a “direct, substantial pecuniary
interest” in the outcome); see also Caperton v. A.T. Massey
Coal Co., Inc., 556 U.S. 868, 872 (2009) (concluding that
“the probability of actual bias on the part of the judge or
decisionmaker is too high to be constitutionally tolerable”
where a party was a substantial donor to judge’s election
campaign).
IN RE COMPLAINT OF JUDICIAL MISCONDUCT 3
In his complaint, complainant first alleges that the district
judge’s association with a university creates the appearance
of impropriety. The district judge graduated from the
university, served on the board of its alumni association,
served as an adjunct professor at the university twenty years
ago, and received at least two honorary awards from
organizations associated with the university. The district
judge also heard at least four cases in which the university
was a party. This was not improper, in appearance or in fact.
It is well established that the law “does not require recusal for
. . . minimal alumni contacts . . . [including] when [a] judge
was alumnus of defendant-university, served as unpaid
adjunct professor who offered internships for the university’s
law students, gave the university a yearly donation for
football tickets . . . planned to create scholarship at the
university,” or served as a “member of . . . school alumni
social organization.” U.S. ex rel. Hochman v. Nackman,
145 F.3d 1069, 1076 (9th Cir. 1998) (citations omitted). The
same principles guide the result here: graduation from a
university, prior service as an adjunct, and the receipt of
alumni awards do not create the appearance of impropriety.
Nor does service on an alumni board when it does not create
a fiduciary interest in pending litigation. See Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 861 (1988)
(concluding that service on a university’s board of trustees
can create the appearance of impropriety when it gives rise to
a fiduciary interest in litigation before the judge). There is no
evidence of such a relationship here, and prior service on an
alumni board would not create such a relationship.
Second, complainant alleges that there is an appearance
of impropriety because the district judge lives near the
university’s attorney. The attorney and the judge are next-
door neighbors. But on its own, having an attorney as a
4 IN RE COMPLAINT OF JUDICIAL MISCONDUCT
neighbor does not create the appearance of impropriety. It
certainly is not judicial misconduct. To the contrary, judges
are expected “to be independent” and “to live their personal
lives as they see fit.” 125 Cong. Rec. 30,064 (1979)
(statement of Sen. Bayh). Complainant does not allege
anything specific about the relationship between the district
judge and the attorney, merely that “the level of concern”
about impropriety “increases.” Misconduct Complaint at 3.
Without more, however, “there’s no basis for concluding that
the judge’s conduct resulted in ‘a substantial and widespread
lowering of public confidence in the courts.’” In re
Complaint of Judicial Misconduct, 632 F.3d at 1290 (quoting
Judicial–Conduct Rule 3(h)(2)). Moreover, “[m]ere general
allegations of intimacy of the judge with opponents are
insufficient to require recusal” or create the appearance of
impropriety. In re Beard, 811 F.2d 818, 828 (4th Cir. 1987);
see also United States v. Kohring, 334 Fed. App’x. 836 (9th
Cir. 2009) (unpublished). A judge “must have neighbors,
friends and acquaintances, business and social relations, and
be a part of his day and generation.” Penn. v. Local Union
542, Int’l Union of Operating Engineers, 388 F. Supp. 155,
159 (E. D. Pa.1974) (quoting Ex Parte N. K. Fairbank Co.,
194 F. 978, 989 (M. D. Ala.1912)). Indeed, friendship
between a judge and a lawyer, or other participant in a trial,
without more, does not require recusal. See, e.g., United
States v. Murphy, 768 F.2d 1518, 1537 (7th Cir. 1985). Here,
the only relationship alleged is geographic proximity.
Thus, complainant does not “identify . . . facts that might
reasonably cause an objective observer to question [a judge’s]
impartiality.” Liljeberg, 486 U.S. at 865. In this case, there
is no evidence of misconduct or an appearance of
impropriety. Because the complaint “lack[s] sufficient
evidence to raise an inference that misconduct has
IN RE COMPLAINT OF JUDICIAL MISCONDUCT 5
occurred,” these allegations are dismissed. 28 U.S.C.
§ 352(b)(1)(A)(iii); see Judicial-Conduct Rule 11(c)(1)(A)
and (D).
DISMISSED.